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UCSB   LIBRARY 


^ 


The  Federal  Union  and 
the  States 


ADDRESS 


OF 


HON.  COE  I.  CRAWFORD 

BEFORE 

THE  LINCOLN  ASSOCIATION 
OF  JERSEY  CITY,  N.  J. 

February  12,  1912 


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The  Federal  Union  and  the  States. 


Address  of  Hon.  Coe  I.  Crawford,  Before  the 

Lincoln  Association  of  Jersey  City,  N.  J., 

February  12, 1912. 

In  that  most  remarkable  opinion  written  by 
James  Wilson,  Associate  Justice  of  the  Supreme 
Court  of  the  United  States,  in  which  he  gave  the 
reasons  upon  which  the  Court  based  its  decision  in 
the  case  of  Chisholm  against  the  State  of  Georgia, 
rendered  in  1792,  he  said  the  real  question  before 
the  Court  was :  *'Do  the  people  of  the  United  States 
form  a  Nation?"  He  observes  also  that  in  all  our 
study  of  government  we  should  not  forget  that  it 
is  not  the  artificial  persons  called  states,  but  it  is 
men  who  think,  and  speak,  and  act.  He  further  ob- 
serves that  when  Homer  enumerates  the  other  na- 
tions of  Greece,  whose  forces  acted  at  the  siege  of 
Troy,  he  arranges  them  under  the  names  of  their 
different  kings  or  princes ;  but  that  he  distinguished 
the  Athenians  by  always  referring  to  them  as  The 
People  of  Athens,  and  that  Demosthenes  stirred 
his  countrymen  most  when  he  began  his  orations 
with  the  words:  "O,  Men  of  Athens!" 


The  Constitution  was  ordained  and  established 
by  the  People  of  the  United  States,  as  declared  in 
its  preamble,  and  not  by  a  group  of  artificial  public 
corporate  bodies  called  states.  James  Wilson,  look- 
ing through  these  artificial  structures,  saw  beyond 
them  and  recognized  that  at  the  foundation  of  the 
great  super-structure  were  human  beings— men 
and  women  with  warm,  human  blood  in  their  veins, 
and  that  the  government  was  of  them,  by  them, 
and  for  them. 

He  understood  that  the  Constitution  and  laws 
of  the  new  republic  were  made  for  society  and  that 
society  was  not  to  be  sacrificed  by  a  construction 
which  might  follow  the  letter,  but  which  would 
destroy  the  spirit.  At  many  points  the  great  Char- 
ter of  our  Government  was  the  result  of  compro- 
mise. The  situation  at  the  time  of  its  making  was 
full  of  difficulty.  The  small  states  were  jealous 
of  the  large  states.  The  slave  states  were  jealous 
of  the  free  states.  Many  people  in  all  the  states 
were  jealous  of  centralized  Federal  power,  while 
the  believers  in  a  strong  Federal  Government  were 
jealous  of  the  power  of  sovereignty  claimed  by  the 
individual  states.  These  difficulties  were  adjusted 
by  concession  and  compromise.  To  win  the  sup- 
port of  the  slave  states  that  ill-fated  clause  was 
adopted,  under  which  representation  in  Congress 
was  apportioned  according  to  population,  ascer- 
tained by  adding  to  the  whole  number  of  free  per- 
sons three-fifths  of  the  slaves ;  also  that  other  pro- 
vision for  the  return  of  a  fugitive  slave  to  his 


owner.  Thus  recognized  as  a  right  of  property  by 
the  Constitution  itself,  slavery  in  all  its  worst 
forms  flourished  in  this  land  of  liberty  for  more 
than  seventy  years— from  1789  to  1865,  when  the 
thirteenth  amendment  was  ratified. 

The  services  of  Abraham  Lincoln  to  his  own 
and  to  future  generations  cannot  be  understood, 
cannot  be  appreciated,  without  a  study  of  the  re- 
lation which  those  services  bear  to  the  course  and 
current  of  American  history  during  more  than 
seventy  years  of  controversy  and  contention,  dur- 
ing which  one  party  maintained  that  the  Federal 
Union  was  a  mere  league,  which  could  be  termi- 
nated at  any  moment  by  the  voluntary  withdrawal 
of  one  or  more  of  the  states,  while  another  party 
maintained  that  the  Constitution  was  ordained  by 
the  people  of  a  Nation  and  that  the  union  which 
it  created  could  not  be  dissolved  except  by  force, 
violence  or  revolution.  It  was,  indeed,  an  angry 
and  bitter  controversy,  which  soon  became  sec- 
tional in  character.  Patrick  Henry,  Thomas 
Jefferson,  John  C.  Calhoun  and  Jefferson  Davis 
on  one  side ;  Hamilton,  James  Wilson,  John  Mar- 
shall, Daniel  Webster  and  Abraham  Lincoln  on 
the  opposing  side;  these  and  others,  whom  I  can- 
not take  time  to  name  here,  are  great  figures 
standing  in  the  foreground  of  any  picture  which 
truthfully  represents  that  controversial  and  mo- 
mentous period  in  the  history  of  this  Republic. 

Although  the  question  remained  for  so  long  a 
time  unsettled,  we  now  see  clearly  that  the  attempt 


6 


to  establish  a  permanent  Federal  Union  of  the 
states  must  have  ended  in  utter  failure  within  the 
first  two  decades  which  followed  the  adoption  of 
the  Constitution  if  the  views  so  stubbornly  urged 
by  Jefferson,  Calhoun  and  Davis  had  found  sanc- 
tion in  the  decisions  of  the  Supreme  Court  of  the 
United  States.  It  was,  indeed,  fortunate  that  the 
fathers  established  that  court  as  a  co-ordinate  and 
independent  department  of  the  Government  and 
made  it  the  depository  of  its  judicial  power  with 
provision  that  the  tenure  of  office  held  by  the  Fed- 
eral judges  should  depend  entirely  upon  good  be- 
havior and  duration  of  human  life ;  because  in  those 
earlier  years  of  super-heated  and  angry  debate  and 
division  over  questions  relating  to  the  power  and 
jurisdiction  of  the  Supreme  Court,  in  construing 
statutes  and  provisions  of  the  Constitution,  to  nul- 
lify a  statute,  whether  enacted  by  Congress  or  by 
the  Legislature  of  a  state,  whenever  it  clearly  ap- 
pears to  the  court  that  such  statute  is  repugnant 
to  the  Constitution,  judges,  whose  tenure  of  office 
depended  upon  public  sentiment,  would  not  have 
dared  to  meet  the  storms  of  denunciation  and  crit- 
icism and  the  howls  of  rage  and  bitterness  which 
Chief  Justice  Marshall  encountered  with  calmness 
and  serenity  after  each  of  the  great  decisions  by 
which,  with  supreme  courage  and  convincing  logic 
boldly  expressed  in  clear  and  specific  language,  he 
established  the  supremacy  of  the  Constitution  so 
completely  that  nothing  less  than  civil  war  could 
hope  to  overthrow  it.    Or  had  they  been  equal  to 


the  great  responsibility  and  decided  as  Marshall 
did,  such  judges  would  have  paid  the  penalty  by 
dismissal  from  office.  Our  fathers  wanted  an  in- 
dependent Judiciary.  They  created  a  system'  of 
government  essentially  different  from  that  of 
Great  Britain  from  which  they  had  so  recently 
declared  their  independence.  In  England  there 
was  no  federal  union  of  states;  no  division  of 
powers;  all  power — executive,  legislative  and  judi- 
cial—was vested  in  an  onmipotent  parliament; 
there  were  no  written  constitutions,  either  state 
or  federal.  The  British  constitution  was  a  mass  of 
unwritten  precedents  and  traditions,  subject  to 
change  by  a  simple  act  of  parliament— the  result 
of  an  appeal  to  the  country.  Executive  ministers 
and  judges  of  courts  were  members  of  one  or  the 
other  of  the  houses  of  parliament  and  subject  to 
its  supreme  control.  The  whole  fabric  of  British 
government  rested  upon  custom  and  practice  not 
defined  nor  limited  by  any  written  charter.  It 
was  an  evolutionary  growth,  described  in  this  fash- 
ion by  Lord  Macaulay : 

"To  think  nothing  of  symmetry  and  much  of 
convenience;  never  to  remove  an  anomaly 
merely  because  it  is  an  anomaly ;  never  to  inno- 
vate except  so  far  as  to  get  rid  of  the  griev- 
ance; never  to  lay  down  any  proposition  of 
wider  extent  than  the  particular  case  for  which 
it  is  necessary  to  provide;  these  are  the  rules 
which  have,  from  the  age  of  John  to  the  age  of 
Victoria,  guided  the  deliberations  of  our  two 
hundred  and  fifty  parliaments." 


8 


From  that  system  of  govermnent  by  parliament 
our  fathers  broke  away  and  erected  another,  based 
upon  written  constitutions  underlying  the  several 
states,  and  upon  a  written  Constitution  binding  all 
the  states  into  a  Federal  Union— a  system  which 
divided  the  power  of  government  into  three  sepa- 
rate and  specifically  defined  divisions,  making  of 
each  a  distinct,  separate  and  co-ordinate  depart- 
ment—placing limitations  upon  it  and  permitting 
it  to  exercise  no  power  except  that  expressly  dele- 
gated to  it.  They  declared  that  this  written  Con- 
stitution, ordained  and  established  by  the  Amer- 
ican people — ^and  the  laws  made  in  pursuance 
thereof,  and  all  treaties  entered  into  by  the  United 
States— shall  be  "the  supreme  law  of  the  land," 
and  that  the  judges  in  every  state  shall  be  bound 
thereby,  "anything  in  the  Constitution  or  laws  of 
any  state  to  the  contrary  notwithstanding. ' ' 

They  placed  limitations  upon  the  power  of  Con- 
gress by  prohibiting  it  from  passing  bills  of  at- 
tainder or  ex  post  facto  laws ;  from  lev^ang  a  duty 
upon  articles  exported  from  any  state ;  from  enact- 
ing laws  interfering  with  the  free  exercise  of  relig- 
ion; from  abridging  freedom  of  speech  or  of  the 
press;  from  depriving  any  person  of  life,  liberty 
or  property  without  due  process  of  law;  from  in- 
terfering with  the  right  of  the  people  peaceably  to 
assemble  and  to  petition  the  Government  for  re- 
dress of  grievances. 

They  also  placed  prohibitions  upon  the  states  by 
declaring  that  no  state  shall  coin  money  or  emit 


bills  of  credit ;  or,  without  the  consent  of  Congress, 
lay  any  imposts  or  duties  on  imports  or  exports ;  or 
enter  into  any  agreement  or  compact  with  another 
state  or  with  a  foreign  power.  How  were  these 
prohibitions  to  be  made  effective  if  not  by  the 
courts'?  Yet  in  those  earlier  years  a  great  manj 
people  contended  with  much  vehemence  that  the 
courts  had  no  power  or  authority  to  declare  a  leg- 
islative enactment  void  even  though  that  act  were 
clearly  repugnant  to  the  Constitution  or  to  a  treaty 
of  the  United  States  with  a  foreign  power. 

Some  people,  even  in  our  day,  suggest  that  this 
power  be  taken  froni  the  Supreme  Court.  They 
apparently  fail  to  realize  that  its  withdrawal 
would  mean  the  dissolution  of  the  Union.  Mr.  Jus- 
tice Wilson  and  Chief  Justice  Marshall  saw  clear- 
ly how  necessary  it  was  that  the  Supreme  Court 
firmly  recognize  the  supremacy  of  the  Constitu- 
tion over  legislative  and  executive,  as  well  as  judi- 
cial action,  if  the  United  States  was  to  become  a 
nation.  Wilson  took  the  first  step  when  he  an- 
nounced the  decision  of  the  court  in  the  great  case 
of  Chisholm  against  the  State  of  Georgia.  Mar- 
shall completed  the  work  so  well  begun  by  Wilson 
when,  in  a  series  of  ever-memorable  decisions,  he 
declared  in  behalf  of  the  court  that  an  act  of  Con- 
gress or  an  act  of  the  Legislature  ©f  a  state,  or  a 
decision  of  the  highest  judicial  tribunal  of  a  state 
is  void  when  clearly  repugnant  to  the  Federal  Con- 
stitution or  to  any  treaty  between  the  United 
States  and  a  foreign  nation.    Had  the  court  failed 


10 


to  so  decide  any  one  of  these  three  propositions  in 
favor  of  the  supremacy  of  the  Constitution  and 
treaties,  the  union  of  the  states  under  that  Consti- 
tution would  have  gone  down.  Disunion  would 
have  come  while  Abraham  Lincoln  was  yet  a  bare- 
footed boy  in  the  woods  of  his  native  Kentucky; 
but  men  can  be  found  who  will  assert  that  John 
Marshall  was  a  usurper.  Let  us  suppose  for  a 
moment  that  the  Supreme  Court  had  played  the 
coward  and— quailing  before  the  violent  assaults 
made  upon  it— had  declined  to  assume  the  great  re- 
sponsibility of  upholding  the  paramountcy  of  the 
Federal  Constitution.  What  would  have  been  the 
result  ? 

The  state  of  New  York  would  have  successfully 
maintained  exclusive  control  over  navigation  on 
the  Hudson  and  Federal  control  of  commerce  be- 
tween the  states  would  have  been  defeated.  New 
York  could  have  closed  her  ports  to  New  England 
and  imposed  duties  upon  imports  from  New  Jer- 
sey and  Pennsylvania ;  Maryland  could  have  taxed 
the  Bank  of  the  United  States  and  issued  bills  of 
credit  and  coined  money ;  Rhode  Island  could  have 
successfully  enacted  a  state  bankruptcy  law,  by 
which  the  obligations  of  contract  could  have  been 
annulled  and  debts  legally  repudiated;  Virginia 
and  the  Carolinas  could  have  made  agreements  or 
compacts  with  each  other  or  with  a  foreign  power. 
On  the  other  hand.  Congress  could  have  passed 
laws  levying  duties  upon  articles  exported  from 
one  or  more  of  the  states ;  or  interfering  with  state 


11 


autonomy ;  or  with  the  purely  domestic  affairs  and 
local  police  regulations  of  the  states ;  it  might  have 
passed  bills  of  attainder  or  ex  post  facto  laws,  or 
laws  which  would  deprive  citizens  of  their  lives, 
liberties  and  property  without  due  process;  or 
laws  which  would  take  away  the  power  and  de- 
stroy the  efficiency  of  the  executive  and  judicial 
departments. 

In  other  words,  had  it  not  been  for  the  check  put 
upon  it  by  the  Supreme  Court  in  upholding  the 
spirit  of  the  Constitution,  Congress  might  have 
usurped  all  governmental  power. 

These  decisions  made  the  Constitution  a  living  in- 
strument, expanding  under  the  enlightened  con- 
struction of  the  court  and  keeping  pace  with  the 
needs  of  a  growing  nation.  Othei"wise  it  would 
have  been  a  mere  idle  declaration  upon  paper,  such 
as  the  constitution  of  Mexico  is  today ;  or  like  those 
paper  constitutions  of  the  French  republic  in  the 
days  of  the  Revolution.  Indeed,  nothing  less  than 
the  exercise  of  this  power  by  the  Supreme  Court 
could  have  brought  into  harmonious  relation  all 
these  state  laws,  state  constitutions  and  acts  of 
Congress.  It  is  idle  to  talk  about  the  British  sys- 
tem, in  which  parliament  is  above  the  courts.  To 
return  to  that  system  would  be  to  abolish  or  aban- 
don our  own ;  it  would  mean  nothing  less  than  rev- 
olution and  a  wholesale  destruction  of  the  Ameri- 
can scheme  of  federal  government.  The  British 
system  may  be  better  than  ours — I  do  not  think  so 
—but  it  is  only  the  wildest  and  most  unpractical 


12 


dreamer  who  would  seriously  propose  such  a  revo- 
lution, as  the  adoption  of  that  system  would  cause 
in  our  form  of  government,  which  depends  so 
largely  upon  the  independence  of  the  Judicial  De- 
partment as  the  check  and  balance  between  the 
Executive  and  Legislative  Departments,  and  which 
provides  the  way  by  which  to  maintain  the  co-ordi- 
nation of  the  states.  Mr.  Lincoln  found  ample  jus- 
tification for  the  use  of  force  in  preventing  seced- 
ing states  from  withdrawing  from  the  Union  in  the 
language  of  Chief  Justice  Marshall  in  Cohens 
against  Virginia,  where  the  great  jurist  declares: 

*'It  is  usurpation  whenever  a  part  under- 
takes to  do  what  the  whole  cannot  be  kept  from 
doing.  *  *  *  The  people  made  the  Constitu- 
tion and  they  can  unmake  it,  but  this  power 
resides  only  in  the  whole  body  of  the  people, 
not  in  any  sub-division  of  them.  The  attempt 
of  any  of  the  parts  to  exercise  it  is  usurpation 
and  ought  to  be  repelled  by  those  to  whom  the 
people  have  delegated  their  power /^ 

This  was  a  clear  declaration  in  favor  of  the 
power  under  the  Constitution  to  coerce  a  state  and 
against  the  right  of  a  state  to  secede  from  the 
Union.  Could  the  ''recall  of  judges"  have  been 
invoked  against  Mr.  Marshall  at  that  time  of  in- 
tense feeling  he  would  probably  have  been  turned 
out  of  office. 

In  contending  for  the  independence  and  fear- 
lessness of  the  Judiciary  I  do  not  wish  to  be  mis- 


13 


understood.  There  is  much  which  calls  for  criti- 
cism in  the  administration  of  our  courts.  There 
are  many  defects  in  judicial  procedure,  both  civil 
and  criminal,  which  all  admit  should  be  remedied. 
While,  as  a  rule,  our  judges  have  been  and  are  men 
of  the  highest  integrity  and  honor,  singularly  free 
from  undue  influence,  there  are  exceptions,  of 
course,  where,  unfortunately,  powerful  and  selfish 
influences  reach  the  judge  and  secure  unfair  ad- 
vantage ;  but  such  cases  are  rare.  AVhen  the  court 
is  a  state  tribunal  and  the  term  of  the  judge  elec- 
tive, the  people  can  easily  correct  abuses  if  they 
earnestly  desire  by  reforming  the  judicial  proced- 
ure, shortening  the  term  of  the  judges  and  refus- 
ing to  re-elect  the  imworthy  ones.  The  remedy  is 
more  difficult  where  the  judge  is  a  Federal  officer 
holding  his  position  during  life  and  good  behavior, 
and  where  he  cannot  be  removed  except  by  im- 
peachment. The  inferior  Federal  Courts,  how- 
ever, are  creatures  of  statute.  Except  as  to  tenure 
of  office  Congress  can  control  them.  It  may,  in  its 
discretion,  abolish  them  or  reduce  their  powers,  or 
limit  their  jurisdiction.  The  irritation  and  the 
uneasiness  of  the  people  and  their  hostility  to  the 
courts  are  directed  largely  against  these  inferior 
Federal  Courts ;  and,  should  an  amendment  fixing 
the  term  of  the  judges  of  these  courts  at  a  period 
of  six  or  ten  years  be  proposed,  it  would,  in  my 
humble  opinion,  be  ratified  by  three-fourths  of  the 
states,  because  of  a  prevailing  opinion  that  some 
of  these  Federal  judges  are  too  indifferent  to  the 


14 


rights  of  the  people  and  not  sufficiently  responsive 
to  present  day  needs  and  present  day  conditions 
when  passing  upon  issues  between  the  people  and 
special  interests.  The  fact  that  at  the  expiration 
of  a  fixed  term  his  conduct  as  a  judge  would  come 
under  review  by  the  President  and  the  Senate,  both 
of  them,  when  determining  whether  or  not  he 
should  be  reappointed,  acting  under  the  scrutiny 
and  watchful  eye  of  the  public,  would  not  destroy 
his  independence,  but  it  would  operate  as  a  whole- 
some restraint  upon  the  judge,  while  the  expira- 
tion of  his  term  would  furnish  the  opportunity  to 
dispense  with  the  service  of  an  unworthy  or  incom- 
petent man.  I,  for  one,  am  inclined  to  believe  that 
an  amendment  of  this  kind  would  improve  the  Fed- 
eral Judiciary.  Congress  has,  perhaps,  created  too 
many  inferior  courts  and  been  too  liberal  in  grant- 
ing to  them  powers  of  injunction,  particularly  in 
proceedings  against  the  officers  of  a  state  attempt- 
ing to  enforce  the  statute  of  a  state.  It  is  a  matter 
of  doubt  whether  the  new  Courts  of  Custom,  of 
Commerce  and  of  Patents  were  wisely  established. 
These  inferior  and  intermediate  courts,  anxious 
to  enlarge  their  jurisdiction  by  interfering  fre- 
quently with  the  orders  and  findings  of  adminis- 
trative boards  and  commissions  of  the  Govern- 
ment, are  often  the  means  of  delayln;^  rather  than 
promoting  justice;  but  Congress  may  n;)olish  them 
whenever  in  its  wisdom  it  chooses  tn  do  so.  Oul" 
courts  and  the  administration  of  justice  must  com- 


15 


mand  the  confidence  and  respect  of  the  people  if 
the  Government  is  to  endure. 

It  behooves  us  to  heed  the  complaints  that  are 
being  made  on  every  hand  in  regard  to  glaring 
defects  in  the  civil  and  criminal  procedure  of  both 
the  State  and  Federal  Judiciary.  Mere  technicali- 
ties; appeals  based  upon  quibbles  and  taken  for 
delay;  unnecessary  peremptory  challenges  of  jur- 
ors and  immaterial  objections  to  their  competency; 
adherences  to  worn  out  precedents  and  ancient 
rules,  not  adapted  to  needs  of  the  present,  must  all 
be  swept  away  if  our  courts  are  to  retain  their  hold 
on  the  affections  of  the  people.  An  effective  and 
speedy  method,  judicial  in  character,  but  more 
simple  and  surer  of  results  than  proceedings  by 
impeachment  should  be  provided  by  which  bad  and 
unworthy  judges  may  be  dismissed  from  office. 
But,  on  the  other  hand,  let  us  beware  that  in  our 
eagerness  to  correct  existing  evils  we  do  not  adopt 
methods  exposed  to  far  greater  evils  than  those  we 
would  remove.  This,  I  fear,  would  be  the  case  if 
the  Judiciary  were  subjected  to  what  is  known  as 
the  recall,  and  should  that  ''sword  of  Damocles" 
be  held  over  the  heads  of  the  judges.  The  honest 
and  fearless  judge  must  often  decide  cases  against 
strong  public  prejudice  and  hostile  public  senti- 
ment if  he  does  his  duty  and  applies  the  rules  of 
law  and  justice.  The  tenure  of  office  held  by  him 
should  never  be  made  to  depend  upon  the  decision 
of  the  majority  of  the  voters  in  his  district  ex- 
pressed by  ballot  at  the  close  of  a  heated  campaign 


16 


forced  upon  him  hy  a  minority  petition  signed  ex 
parte;  a  campaign  in  which  the  issue  is  whether 
or  not  he  correctly  weighed  the  testimony  and  ap- 
plied the  law  in  causes  tried  by  him.  We  should 
commit  a  grave  and  serious  error  if  we  were  to 
adopt  so  questionable  a  remedy  as  that.  We  should 
be  equally  unwise,  in  my  judgment,  if,  becaus(i  we 
disagree  with  the  conclusion  reached  by  the  Su- 
preme Court  of  the  United  States  that  a  certain 
act  of  Congress  is  void  because  repugnant  to  the 
Constitution,  or  because  that  court  construed 
some  other  act  of  Congress  differently  from  the 
way  we  would  have  construed  it,  we  should  depriA'c 
the  court  of  its  power  or  greatly  cripple  its  power 
to  declare  those  acts  void  which  clearly  viola  ti^  the 
provisions  of  the  Constitution.  It  is  a  matter  of 
surprise  that  any  reasonable  and  loyal  citizen  of 
the  United  States  should  propose  the  use  of  such 
revolutionary  and  destructive  weapons  as  these. 
But  suggestions  of  this  kind  are  abroad  in  the  land 
and  must  be  met  with  courage  by  all  who  oppose 
them  because  they  are  dangerous  and  unsound. 
Everyone  concedes  that  the  decisions  of  the  court 
should  be  and  are  open  to  the  freest  criticism. 
Judges  are  human,  and  to  err  is  human.  The 
judges  as  individuals  are  not  entitled  to  special 
favor.  They  have  not  been  set  apart  as  more  sac- 
red than  other  human  beings.  The  effect  of  fair 
and  even  sharp  and  merciless  criticism  of  their  de- 
cisions is  wholesome.  There  is,  however,  a  wide 
difference  between  free  criticism  of  the  courts  and 


17 


their  decisions  and  the  curtailment  or  destruction 
of  the  independence  and  vital  power  vested  in 
them  and  necessary  to  the  preservation  of  the 
Government  itself.  Some  people  do  not  seem  to 
have  discovered  this  truth.  Abraham  Lincoln  crit- 
icised Chief  Justice  Taney  and  the  decision  of  the 
Court  in  the  Dred  Scott  case  unsparingly,  but  no 
man  was  more  zealous  than  Mr.  Lincoln  in  uphold- 
ing each  and  every  department  of  the  Government 
created  by  the  Constitution  and  in  the  preserva- 
tion of  the  Union  established  by  it,  or  who  more 
firmly  supported  those  canons  of  construction  de- 
clared by  Chief  Justice  Marshall.  It  is  sometimes 
said  that  the  Federal  judges  holding  office  for  life 
or  during  good  behavior  are  not  subject  to  tlie  will 
of  the  people,  and  that  in  our  form  of  government 
no  public  officer  should  be  entrusted  with  power 
who  is  not  in  some  manner  accountable  to  the  peo- 
ple. The  Federal  judges  are  accountable  to  the 
people.  The  Constitution  was  ordained  by  the  peo- 
ple and  it  provides  that  his  tenure  of  office  shall 
depend  upon  the  good  behavior  of  the  judge  and 
that  he  may  be  impeached  for  wrong  doing.  This 
makes  him  accountable  to  the  people  in  the  way 
which  they  themselves  have  provided  in  a  Consti- 
tution which  they  ordained  and  established.  So  it 
is  not  true  to  say  that  these  judges  are  not  accoimt- 
able  to  the  people.  If  the  method  of  procedure  by 
which  a  bad  judge  may  be  impeached  is  too  diffi- 
cult, a  way  has  been  provided  by  which  to  amend 
that  Constitution,  and  it  should  be  resorted  to  for 


18 


the  purpose  of  adopting  some  easier  and  more  ef- 
fective method ;  but  it  should  be  by  judicial  inquiry 
and  speedy  trial  with  an  opportunity  to  be  heard— 
not  a  mere  expression  of  public  opinion  after  an 
excited  and  spectacular  campaign  for  votes.  Mr. 
Hamilton  correctly  observed  that  the  Judiciary, 
from  the  nature  of  its  functions,  will  always  be  the 
least  dangerous  to  the  political  rights  guaranteed 
by  the  Constitution.    He  said : 

''The  Executive  not  only  dispenses  the  hon- 
ors but  holds  the  sword  of  the  community.  The 
Legislature  not  only  commands  the  purse  but 
prescribes  the  rules  by  which  the  duties  and 
rights  of  every  citizen  are  to  be  regulated.  *  *  * 
The  Judiciary  may  be  said  to  have  neither 
force  nor  will,  but  merely  judgment.  *  *  * 
Though  individual  oppression  may  now  and 
then  proceed  from  the  courts  of  justice,  the 
general  liberty  of  the  people  can  never  be  en- 
dangered from  that  quarter ;  I  mean  so  long  as 
the  Judiciary  remains  truly  distinct  from  both 
the  Legislative  and  Executive. ' ' 

Hamilton  was  right.  Judges  cannot  take  the 
initiative;  they  cannot  go  into  the  forum  and 
advocate  political  doctrines  as  partisans,  as  execu- 
tive and  legislative  officers  are  permitted  to  do. 

When  attacked  in  the  public  press  and  on  the 
platform  by  bitter  partisans ;  when  their  decisions 
are  assailed,  the  lips  of  the  judges  are  closed.  The 
dignity  of  the  judicial  office  does  not  permit  them 
to  reply.     They  do  not  make  issues;  they  decide 


19 


only  the  questions  that  the  parties  before  them 
have  raised.  As  Mr.  Hamilton  has  said,  they  have 
** neither  force  nor  will,  but  merely  judgment." 
The  courts  cannot  go  out  and  seek,  nor  can  they 
create  controversies ;  they  can  simply  hear  and  de- 
termine the  issues  brought  before  them  and  enter 
judgment.  The  enforcement  of  their  decrees  and 
writs  follows  because  there  is  universal  respect  for 
the  majesty  of  the  law ;  not  because  the  courts  com- 
mand fleets  and  annies.  When  the  authorities  of 
the  state  of  Georgia  refused  to  obey  a  writ  of 
habeas  corpus  in  the  case  of  the  Cherokee  Nation 
against  that  State,  President  Jackson  refused 
the  aid  of  the  Executive  Department  and  declared 
that  ''John  Marshall  has  made  his  decision;  now 
let  him  enforce  it;"  the  Supreme  Court  of 
the  United*  States  was  powerless  to  proceed  fur- 
ther. Jackson,  as  the  Chief  Executive,  held  the 
nation's  sword  and  Congress  controlled  its  purse; 
without  their  co-operation  the  court  could  go  no 
further. 

This  fact  in  the  history  of  the  Supreme  Court 
proves  how  idle  are  the  fears  of  those  who  mani- 
fest concern  lest  the  courts  endanger  the  liberties 
of  the  people  by  an  abuse  of  its  power,  and  vindi- 
cates the  statement  of  Mr.  Hamilton  that  the  Judi- 
ciary, from  the  nature  of  its  functions,  is  the  least 
dangerous  to  the  political  rights  guaranteed  by  the 
Constitution.  Congress,  and  not  the  Federal 
courts,  is  to  blame  for  the  present  situation  in 
which  those  courts    have    been    placed  in    suits 


20 


brought  to  enforce  the  Sherman  Anti-Trust  Act. 
Without  their  seeking  it,  the  burden  and  the  duty 
have  been  put  upon  these  courts  of  not  only  dis- 
solving vast  combinations  in  restraint  of 
trade,  such  as  the  Standard  Oil  Company  and  the 
American  Tobacco  Company,  and  of  permanently 
enjoining  them  from  continuing  in  business, 
and  directing  the  division  of  their  assets  and  the 
distribution  thereof  to  shareholders  in  the  several 
constituent  and  subsidiary  corporations;  but,  in 
addition,  the  almost  impossible  task  and  the  enor- 
mous responsibility  have  been  put  upon  them  of 
supervising,  reviewing,  directing  and  consenting  to 
some  proposed  plan  under  which  several  smaller 
concerns,  owned  chiefly  by  the  same  old  stockhold- 
ers, may  severally  and  independently  of  each  other 
conduct  the  vast  business  theretofore  conducted 
by  the  unlawful  combination.  If  the  Government 
is  successful  in  the  pending  suits  against  the  Har- 
vester Trust  and  the  Steel  Trust  the  courts  will 
again  be  called  upon  to  perform  this  task.  It  is 
work  which  no  court  should  be  asked  to  do.  It 
properly  belongs  to  some  administrative  tribunal. 
The  nature  and  character  of  the  work  make  it 
practically  impossible  for  a  court  or  judge  to  do 
it.  It  is  put  upon  the  courts  because  Congress  has 
neglected  to  provide  some  other  and  more  efficient 
method  of  regulation  and  restraint  in  the  conduct 
of  interstate  business  by  corporations.  The  work 
which  should  be  done  by  an  administrative  tribu- 
nal is  forced  upon  the  courts  by  the  neglect  of 


21 


Congress  to  provide  for  such  tribunal,  and  these 
courts  are  unjustly  criticised  for  doing  the  best 
they  can  to  render  a  service  which,  under  no  cir- 
ciunstances,  should  have  been  required  of  them. 
But  a  more  efficient  remedy  will  be  provided  soon, 
let  us  hope.  The  attention  of  the  people  is  now 
directed  to  this  problem,  and  they  will  not  fail  to 
find  its  solution.  It  is  half  solved  when  clearly 
and  correctly  stated.  The  point  aimed  at  is  special 
privilege.  The  American  people  have  determined 
to  destroy  that.  They  have  determined  that  the 
law  shall  not  permit  one  class  of  citizens,  as  indi- 
viduals or  as  corporations,  to  practice  extortion  or 
lay  excessive  burdens  upon  other  citizens  and  make 
it  harder  for  them  to  live;  not  only  that  the  law 
shall  not  permit  this  thing,  but  that  it  shall  go  fur- 
ther and  prevent  this  thing ;  that  those  in  charge  of 
the  execution  of  the  law  shall  enforce  it.  They 
have  determined  that  special  privilege  shall  be  de- 
stroyed in  this  generation  as  slavery  was  destroyed 
in  the  last  generation ;  that  the  wrongdoer,  whether 
he  be  a  malefactor  of  great  wealth  or  a  dynamiter 
pretending  to  represent  organized  labor,  shall  suf- 
fer the  pains  and  penalties  of  the  law ;  that  special 
privilege  shall  be  destroyed  under  the  Constitution 
as  it  stands,  or,  if  found  necessary,  that  the  Con- 
stitution shall  be  amended  so  as  to  permit  it  to  be 
done. 

In  any  event  the  die  is  cast.  The  people  have 
entered  their  decree.  Because  corporate  wealth, 
amassed  under  special  privilege,  was  not  bearing 


22 


its  share  of  the  public  burden  Congress  has  already- 
imposed  an  excise  tax  upon  its  right  to  transact 
interstate  business,  based  upon  net  earnings.  Be- 
cause those  who  receive  enormous  incomes— far  be- 
yond their  needs  and  the  needs  of  those  dependent 
upon  them — do  not  bear  their  share  of  the  ex- 
penses of  maintaining  the  Government,  and  be- 
cause that  burden  falls  too  heavily  upon  the  man 
of  small  means — ^least  able  to  bear  it — the  people 
will  soon  ratify  the  proposed  amendment  giving 
clear  and  unquestioned  power  to  Congress  to  levy 
a  tax  upon  incomes.  The  people  are  also  deter- 
mined that  the  transmission  of  great  inheritances 
shall  be  made  to  pay  a  toll  to  the  Government  un- 
der whose  protection  they  are  accumulated,  there 
by  removing  to  some  extent  the  burden  now  borne 
upon  the  backs  of  the  poor.  They  are  also  deter- 
mined that  the  general  tvelfare,  and  not  special  in- 
terests, shall  be  the  governing  motive  in  determin- 
ing the  amount  which  shall  be  raised  by  duties  on 
imports  and  the  extent  to  which  such  duties  shall 
protect  the  American  market  place. 

More  and  more  it  is  becoming  necessary  to  in- 
voke the  use  of  the  powers  granted  by  our  Federal 
Constitution  to  Congress  in  the  solution  of  the 
growing  problems  which  arise  in  our  complex  in- 
dustrial and  commercial  life.  These  problems  can- 
not be  solved  by  the  states  because  they  are  inter- 
state problems. 

Under  modern  conditions  commerce  knows  no 
state  lines.    Yet  many  of  the  states,  by  unwise  and 


23 


improvident  statutes,  have  permitted  the  organi- 
zation of  companies  which,  without  restraint  by  the 
laws  creating  them,  have  proceeded  to  prey  upon 
the  people  in  all  the  states  through  the  avenues  of 
interstate  commerce.  They  have  allowed  com- 
panies to  be  organized  for  any  sort  of  business 
without  reference  to  where  it  is  to  be  carried  on 
and  without  any  limitation  upon  the  capitaliza- 
tion ;  the  charters  granted  are  perpetual  or  may  be 
renewed  over  and  over  again;  consolidations  and 
mergers  are  permitted;  ownership  in  the  stock  of 
competing  corporations  may  be  acquired  without 
limit ;  there  is  no  requirement  that  any  part  of  the 
capital  shall  be  paid  before  the  corporation  begins 
business  or  afterwards;  stock  may  be  issued  for 
property  and  for  service  and  labor,  the  value  of 
which  may  be  arbitrarily  fixed  by  the  board  of 
directors;  the  meetings  of  directors  and  of  stock- 
holders may  be  held  beyond  the  limits  of  the  state ; 
no  official  report  to  the  state  is  required ;  directors 
are  not  required  to  be  residents  of  the  state,  and 
the  same  person  may  act  as  a  director  in  two  or 
more  companies  engaged  in  the  same  kind  of  busi- 
ness. 

All  the  states  do  not  grant  all  these  privileges, 
but  most  of  them  are  permitted  by  the  majority, 
and  none  of  them  is  prohibited  in  all. 

It  is  under  these  lax  state  laws  that  trusts  and 
combinations  are  formed  which  seek  to  monopolize 
and  restrain  trade  and  commerce  between  the 
states.    It  is  very  clear  that  the  only  adequate  rem- 


24 


edy  we  can  hope  for  must  be  obtained  from  the 
Federal  Government  by  the  exercise  of  its  power 
to  regulate  commerce  between  the  states.  As  the 
Interstate  Commerce  Commission  has  brought  the 
railroads  engaged  in  interstate  commerce  under 
control  so  should  an  administrative  commission  of 
the  Federal  Government  bring  all  these  industrial 
and  commercial  concerns  engaged  in  interstate 
conunerce  under  the  control  of  the  Federal  Gov- 
ernment. It  should  be  complete  and  e:ffective  con- 
trol based  upon  the  firm  purpose  to  protect  the 
American  people  from  the  unjust  burdens  of  spe- 
cial privilege  and  monopoly.  Ours  is  a  representa- 
tive government.  It  is  only  representative  in  the 
true  sense  when  the  agencies  selected  by  the  people 
give  expression  to  the  well  wrought  out  and  temper- 
ate conclusions  of  the  people.  The  man  in  public  life 
who  closes  his  ears  to  the  appeals  of  the  masses 
and  listens  only  to  the  demands  of  those  who  seek 
for  some  personal  and  selfish  advantage  through 
the  agencies  of  the  Government,  is  an  enemy  of 
representative  government. 

It  is  to  dislodge  him  that  more  effective  meth- 
ods of  securing  the  execution  of  the  popular  will, 
such  as  the  direct  primary,  the  initiative  and  the 
referendum  are  devised;  it  is  not  for  the  purpose 
of  changing  the  Republic  into  a  pure  democracy, 
but  for  the  purpose  of  placing  effective  weapons  of 
defense  against  special  privilege  in  the  hands  of  the 
people  to  be  used  when  the  emergency  requires.  As 
a  weapon  in  reserve  to  be  used  only  when  regularly 


25 


chosen  representatives  have  been  guilty  of  a  be- 
trayal of  their  trust  these  innovations  are  a  useful 
and  wholesome  restraint.  Back  of  them  all  are  the 
good  sense  and  the  permanent  devotion  of  the 
American  people  to  the  principles  of  justice.  The 
spirit  of  Abraham  Lincoln  still  lives.  His  name 
will  forever  and  always  be  the  inspiration  of  all 
who  strive  to  keep  this  great  Government  close  to 
the  people.  For  we  all  agree,  my  countrymen,  that 
among  the  great  names  which  America  has  given 
to  the  world  no  other  is  so  deeply  and  so  univer- 
sally enshrined  in  the  hearts  and  affections  of  the 
people.  No  other  human  life  has  so  touched  that 
hiunanity  which  is  common  to  us  all.  It  w^s  a  com- 
bination of  Burns  and  Franklin,  of  King  Solomon 
and  David  Crockett,  of  Isaiah  and  Tom  Corwin,  of 
Wendell  Phillips  and  Whitcomb  Riley.  The 
pathos  of  his  early  childhood  in  that  rude  log 
cabin  where,  we  are  told,  "he  slept  on  a  heap  of  dry 
leaves  in  the  corner  of  the  loft,  to  which  ho  mount- 
ed by  means  of  pegs  driven  into  the  wall,"  draws 
thousands  every  year  to  that  sacred  spot .  there  to 
weep  in  silence  as  they  think  of  his  moth?r  dying 
in  that  other  Indiana  cabin  with  a  prayer  for  her 
little  boy  in  her  heart  when  that  little  bo>'  was  only 
nine  years  old.  They  know  that  while  the  home 
was  crude,  and  while  those  who  dwelt  theie  lived 
very  near  to  the  heart  of  nature — almost  out  of 
doors  under  the  blue  sky,  surrounded  by  the  wild 
woods— it  was  a  pure  and  wholesome  place,  sancti- 
fied by  the  presence  of  the  mother,  Nancy  Hanks 


26 


Lincoln,  and  after  she  had  gone  by  the  presence  of 
the  stepmother,  Sallie  Bush  Lincoln — both  noble 
pioneer  women,  who  left  upon  the  boy  impressions 
which  remained  during  all  his  subsequent  life. 
Years  afterward— when  the  pathos  of  his  mother's 
life  became  known— the  world  brought  a  glorious 
wreath  of  flowers,  and  in  tears  of  grateful  remem- 
brance placed  it  upon  the  long  neglected  grave  of 
Nancy  Hanks  Lincoln. 

Americans  rejoice  in  the  fact  that  it  was  possible 
for  this  lad,  starting  upon  the  pathway  of  life  ia 
such  an  environment,  to  encounter  and  overcome 
the  great  obstacles  which  he  encountered  and  over- 
came, and  to  make  the  long  and  toilsome  journey 
which  he  made  in  climbing  to  those  sublime  heights 
upon  which  he  stood  when  he  delivered  his  second 
inaugural  address. 

They  look  upon  his  victory  as,  in  some  way,  their 
own;  for  was  he  not  bone  of  their  bone  and  flesh 
of  their  flesh? 

They  cherish  the  hope  that  the  conditions  of  life 
in  this  Republic— which  is  the  hope  of  the  world — 
may  remain  so  fair  and  just  to  all  that  it  will  con- 
tinue to  be  as  possible  in  the  future  as  it  has  been 
possible  in  the  past  for  any  sturdy  youth  to  blaze 
his  way  from  the  humblest  to  the  highest  station 
in  life.  The  fact  that  in  America  the  opportunity 
for  such  advancement  is  open  to  the  humblest 
child  in  the  land  has  ever  been  our  proud  boast ;  let 
us  devoutly  pray  that  it  may  ever  remain  the  dear- 
est heritage  we  can  leave  to  posterity.    Equal  op- 


27 


portunity  in  the  race  of  life  is  of  far  more  value  to 
the  youth  of  the  country  than  great  fortunes. 
Equality  of  opportunity  and  equality  before  the 
law:  These  must  be  preserved  though  all  else  be 
lost;  to  show  what  they  are  worth  Abraham  Lin- 
coln lived;  to  secure  them  for  all  he  devoted  his 
great  life;  for  them  he  died  the  death  of  a  mar- 
tyr. The  thirteenth  amendment  was  his  crowning 
achievement;  it  removed  the  dark  stain  from  the 
Great  Charter  and  closed  forever  that  controversy 
which  began  when  James  Wilson  propounded  the 
question :  Do  the  people  of  the  United  States  form 
a  Nation? 


000  611293 


VCSB  rjRRARV 


